Federal Driving Offences (13:X): Difference between revisions

Revision as of 18:42, 8 August 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 1, 2023.

A. Dangerous Operation

Under the Criminal Code, it is an offence to operate a motor vehicle in a manner that is dangerous to the public having regard to all of the circumstances (Criminal Code s 320.13 (1)). The consequences differ depending on whether or not the dangerous driving caused bodily harm or death.

Dangerous operation that does not cause bodily harm or death is a hybrid offence (s 320.13 (1)). The driver can be sentenced on summary conviction or indictment. If convicted on indictment, the maximum sentence is imprisonment for a term not exceeding 10 years (s 320.19 (5)).

Dangerous operation causing bodily harm (s 320.13 (2)) is also a hybrid offence. On indictment, the individual is liable to imprisonment for a term not more than 14 years (s 320.2 (a)) The minimum punishment is (s 320.2 (b)):

(i) For a first offence, a fine of $1,000,

(ii) For a second offence, imprisonment for a term of 30 days,

(iii) For each subsequent offence, imprisonment for a term of 120 days.

On summary conviction, the individual is liable to a fine of not more than $5,000 or to a term of imprisonment no longer than 2 years less a day, or both. The minimum punishments for convictions on indictment also apply to summary convictions.

Dangerous operation causing death (s 320.13 (3)) is an indictable offence. The maximum penalty is imprisonment for life (s 320.21). The minimum sentences for convictions of Dangerous operation causing bodily harm also apply to Dangerous operation causing death.

Dangerous operation (s 320.13) is included in the offences created under Criminal Code ss 220 (causing death by criminal negligence), 221 (causing bodily harm by criminal negligence), and 236 (manslaughter). If there is not enough evidence to prove one of the three offences above, it is still possible to convict of dangerous operation s 320.13 (1) (Criminal Code s 662(5)).

In R v. Chung, 2020 SCC 8, the Supreme Court upheld a conviction of dangerous driving causing death. The court decided that even momentary excessive speeding can be sufficient to meet the required mens rea (state of mind) for dangerous driving. The test to be applied is whether a reasonable person would have foreseen the danger of the momentary conduct. Chung demonstrates that in certain contexts, momentary acts can still result in a criminal conviction.

B. Operation While Prohibited

Operation while prohibited is a Criminal Code offence under s 320.18.

The Criminal Code s 320.18(1) states that anyone who operates a conveyance while prohibited from doing so by an order under the Act or another legal restriction imposed by any other Act of Parliament is guilty of an offence. An exception to this is if the driver is registered in an alcohol ignition interlock device program and they are abiding by the conditions of that program (s 320.18[2]). This is a hybrid offence, so the Crown can choose to proceed summarily or by indictment depending on the severity of the alleged violation and other factors.

The possible punishments if found guilty of dangerous operation under s 320.18 are: a) if convicted on indictment, a term of imprisonment not exceeding 10 years b) on summary conviction, a term of imprisonment not exceeding 2 years less a day.

C. Criminal Negligence

This section is not specifically aimed at motor vehicle operators, but is applicable in some circumstances. Under the Criminal Code, criminal negligence involves acts or omissions showing “wanton or reckless disregard for the lives or safety of other persons” (s 219). In Canada, the law surrounding the mens rea requirements for criminal negligence was clarified in R v Creighton, [1993], 3 S.C.R. 3. The standard is to be measured by a modified objective test: whether the accused’s conduct constituted a marked departure from that of the reasonable person given all the circumstances. Characteristics personal to the accused will not be considered with the exception of accused’s incapacity to appreciate the nature of the risks associated with their actions.

In R v Beatty, [2008] 1 S.C.R. 49, 2008 SCC 5, the Court addressed the issue of criminal negligence in the context of dangerous driving. Unlike Creighton, there is no substantive dissent, though five of the newer Supreme Court justices took a slightly different approach to the modified objective test. They noted that the actual (subjective) state of mind of the accused at the time of the accident is relevant in determining if there was a marked departure from the standard of the reasonable person. In Beatty, a momentary lapse of attention with no other evidence of dangerous driving was held not sufficient to warrant criminal sanction under s 249 (criminal negligence causing death).

If negligence results in death, an indictable offence has been committed and the driver may be liable to life imprisonment (s 220). If the negligence results in bodily injury, an indictable offence has been committed and the driver may be liable to imprisonment for 10 years (s 221).

D. Limitation Period

Section 786(2) of the Criminal Code states that, with respect to summary offences, “[n]o proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose”. In contrast, there is no limitation period for indictable offences.

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+{{REVIEWED LSLAP | date= July 1, 2023}}
 {{LSLAP Manual TOC|expanded = motor}}
-== A. Provincial Offences ==
+== A. Dangerous Operation ==
-MVA s 95(1) makes it an offence for an individual to drive knowing that, by order of peace officer or Superintendent, he or she is prohibited  from driving or his or her license is suspended. The prohibition must have been made pursuant to the MVA:
+Under the ''Criminal Code'', it is an offence to operate a motor vehicle in a manner that is dangerous to the public having regard to all of the circumstances (''Criminal Code'' s 320.13 (1)). The consequences differ depending on whether or not the dangerous driving caused bodily harm or death.
-*failure to satisfy a judgment (s 91);
-*failure to pass a driver’s exam (s 92);
-*order of Superintendent (s 93);
-*driving impaired or refused to provide a breath/blood sample (s 94.2); or
-*24-hour suspension (s 215).
-The suspension must be pursuant to the driver’s attendance for a driver’s exam, funds owing (s 90), or driving while prohibited by operation of law (s 102).
+Dangerous operation that does not cause bodily harm or death is a hybrid offence (s 320.13 (1)). The driver can be sentenced on summary conviction or indictment. If convicted on indictment, the maximum sentence is imprisonment for a term not exceeding 10 years (s 320.19 (5)).
-Under MVA s 102, it is an offence to drive while prohibited due to operation of law, namely MVA ss 98 (court ordered prohibition), 99 (automatic prohibition), 100 (failing to stop for a peace officer), or the YJA. Pursuant to YJA s 8(2)(f), when a young offender is convicted  of an offence under the MVA, he or she can be prohibited from driving for a specific period of time. YJA s 8(3) states that a young offender who refuses to stop for a peace officer in violation of MVA s 100 will be prohibited from driving for two years.
+Dangerous operation causing bodily harm (s 320.13 (2)) is also a hybrid offence. On indictment, the individual is liable to imprisonment for a term not more than 14 years (s 320.2 (a)) The minimum punishment is (s 320.2 (b)):
-See [[Governing Legislation and Resources for Motor Vehicle Law (13:II) | Section II: Governing Legislation and Resources for Motor Vehicle Law]] for a further description of suspension, cancellation and prohibition.
+:(i) For a first offence, a fine of $1,000,
-For both offences (MVA ss 95(1) and 102), the first conviction will result in a fine of at least $500 but no more than $2,000 and/or  imprisonment up to six months. Subsequent convictions under s 95(1) result in the same range of fines, but a prison term of between 14 days  and one year. Subsequent convictions under s 102 result in a fine of at least $300 but no more than $2,000, and/or a prison term of between 14 days and one year.
+:(ii) For a second offence, imprisonment for a term of 30 days,
-While MVA s 102 creates an absolute liability offence (i.e. an individual could be automatically prohibited under s 99 and have no defences to s 102), there is little or no chance of incarceration. This is expressly prohibited by OA s 6 which states that there will be no imprisonment for an absolute liability offence. Also, OA s 82(1) states that an individual will not be jailed for non-payment of fines. For these reasons, the Supreme Court of Canada did not strike down the inclusion of MVA s 99 in MVA s 102: ''R v Pontes'' [1995], 13 MVR (3d) 145 (SCC).
+:(iii) For each subsequent offence, imprisonment for a term of 120 days.
-A vehicle is also at risk of being impounded if the driver was prohibited from driving under MVA ss 93, 94.2, 98, 99, and 215. See [[Governing Legislation and Resources for Motor Vehicle Law (13:II) | Section II:  Governing Legislation and Resources for Motor Vehicle Law]] for further information on impoundment.
+On summary conviction, the individual is liable to a fine of not more than $5,000 or to a term of imprisonment no longer than 2 years less a day, or both. The minimum punishments for convictions on indictment also apply to summary convictions.
+Dangerous operation causing death (s 320.13 (3)) is an indictable offence. The maximum penalty is imprisonment for life (s 320.21). The minimum sentences for convictions of Dangerous operation causing bodily harm also apply to Dangerous operation causing death.
-== B. Criminal Code Offence ==
+Dangerous operation (s 320.13) is included in the offences created under ''Criminal Code'' ss 220 (causing death by criminal negligence), 221 (causing bodily harm by criminal negligence), and 236 (manslaughter). If there is not enough evidence to prove one of the three offences above, it is still possible to convict of dangerous operation s 320.13 (1) (''Criminal Code'' s 662(5)).
-Section 259(4) of the ''Criminal Code'' states that a person who operates a motor vehicle while disqualified under the ''Criminal Code'' or a  provincial statute is guilty of an indictable offence and is liable to a maximum penalty of five years imprisonment or is guilty of an offence  punishable on summary conviction.
+In [https://www.canlii.org/en/ca/scc/doc/2020/2020scc8/2020scc8.html ''R v. Chung'', 2020 SCC 8], the Supreme Court upheld a conviction of dangerous driving causing death. The court decided that even momentary excessive speeding can be sufficient to meet the required mens rea (state of mind) for dangerous driving. The test to be applied is whether a reasonable person would have foreseen the danger of the momentary conduct. Chung demonstrates that in certain contexts, momentary acts can still result in a criminal conviction.
-A driver automatically loses the right to drive if convicted of a ''Criminal Code'' offence related to motor vehicle operation. For a first time offence of impaired driving, dangerous driving, or hit-and-run, the automatic driving prohibition is for 12 months. For a second conviction, the prohibition increases to three years. For a third conviction, the driver will be prohibited from driving indefinitely.
+== B. Operation While Prohibited ==
+Operation while prohibited is a Criminal Code offence under s 320.18.
+The Criminal Code s 320.18(1) states that anyone who operates a conveyance while prohibited from doing so by an order under the Act or another legal restriction imposed by any other Act of Parliament is guilty of an offence. An exception to this is if the driver is registered in an alcohol ignition interlock device program and they are abiding by the conditions of that program (s 320.18[2]). This is a hybrid offence, so the Crown can choose to proceed summarily or by indictment depending on the severity of the alleged violation and other factors.
+The possible punishments if found guilty of dangerous operation under s 320.18 are:
+a) if convicted on indictment, a term of imprisonment not exceeding 10 years
+b) on summary conviction,  a term of imprisonment not exceeding 2 years less a day.
+== C. Criminal Negligence ==
+This section is not specifically aimed at motor vehicle operators, but is applicable in some circumstances. Under the ''Criminal Code'', criminal negligence involves acts or omissions showing “wanton or reckless disregard for the lives or safety of other persons” (s 219). In Canada, the law surrounding the ''mens rea'' requirements for criminal negligence was clarified in ''[http://canlii.ca/t/1fs09 R v Creighton]'', [1993], 3 S.C.R. 3. The standard is to be measured by a modified objective test: whether the accused’s conduct constituted a marked departure from that of the reasonable person given all the circumstances. Characteristics personal to the accused will not be considered with the exception of accused’s incapacity to appreciate the nature of the risks associated with their actions.
+In ''[http://canlii.ca/t/1vrp5 R v Beatty]'', [2008] 1 S.C.R. 49, 2008 SCC 5, the Court addressed the issue of criminal negligence in the context of dangerous driving. Unlike ''Creighton'', there is no substantive dissent, though five of the newer Supreme Court justices took a slightly different approach to the modified objective test. They noted that the actual (subjective) state of mind of the accused at the time of the accident is relevant in determining if there was a marked departure from the standard of the reasonable person. In Beatty, a momentary lapse of attention with no other evidence of dangerous driving was held '''not''' sufficient to warrant criminal sanction under s 249 (criminal negligence causing death).
+If negligence results in death, an indictable offence has been committed and the driver may be liable to life imprisonment (s 220). If the negligence results in bodily injury, an indictable offence has been committed and the driver may be liable to imprisonment for 10 years (s 221).
+== D. Limitation Period ==
+Section 786(2) of the ''Criminal Code'' states that, with respect to summary offences, “[n]o proceedings shall be instituted more than '''six months''' after the time when the subject-matter of the proceedings arose”.  In contrast, '''there is no limitation period for indictable offences'''.
+{{LSLAP Manual Navbox|type=chapters8-14}}